TNVP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

TNVP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5186 (23 December 2020)
Division:GENERAL DIVISION
File Number(s): 2020/6316
Re:TNVP
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:23 December 2020
Place:Sydney

The reviewable decision of the delegate is affirmed.
.......................[SGD].................................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether another reason why the visa cancellation should be revoked – Ministerial Direction No. 79 applied – nature and seriousness of offending conduct – sexual and indecent assault offences – risk of reoffending – protection of the Australian community – expectations of the Australian community – strength, nature and duration of ties to Australia – best interests of minor children – impediments to removal – international non-refoulement obligations – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 501, 501CA
CASES
Kalm v Administrative Appeals Tribunal [2013] FCA 890
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
23 December 2020
BACKGROUND

The applicant is a 35-year-old citizen of India who has resided in Australia since February 2008. The applicant held a Subclass 801 (Partner) visa prior to the visa cancellation and is currently married to an Australian citizen.
On 22 May 2013, the applicant was convicted of assault with an act of indecency and was sentenced to a 12-month bond. The applicant appealed this conviction and the conviction was upheld.
On 22 April 2016, the applicant was convicted in the New South Wales District Court of the following offences:
(a)assault occasioning actual bodily harm;
(b)indecent assault; and
(c)two counts of sexual intercourse without consent.
The applicant was sentenced by the District Court to imprisonment for a period of eight years, with a non-parole period of five years and six months. The applicant appealed the sentence to the New South Wales Court of Criminal Appeal and the period of imprisonment was reduced to seven years and five months with a non-parole period of five years. The non-parole period commenced on 24 July 2015 and concluded on 23 July 2020.
As the applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution and failed the character test set out at section 501(6) of the Migration Act 1958 (the Act) on the basis that he had been sentenced to a term of imprisonment of more than 12 months (section 501(6)(a) and section 501(7)(c) of the Act), his visa was subject to mandatory cancellation under section 501(3A) of the Act.
The applicant was notified of the mandatory cancellation of his visa by letter from the respondent dated 19 March 2019. The applicant provided a response to the invitation to request revocation of the cancellation on 15 April 2019.
In a letter dated 7 October 2020, the applicant was notified of the decision of the delegate of the Minister (the delegate) to not revoke the visa cancellation decision.
On 13 October 2020, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the decision of the delegate.
LEGISLATIVE FRAMEWORK
As the parties agree that the applicant does not pass the character test set out in section 501(6) of the Act, the sole issue the Tribunal must consider is whether to exercise its discretion under section 501CA(4) of the Act to revoke the mandatory cancellation of the applicant’s visa.
Accordingly, the issue before the Tribunal is whether, having regard to Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 79), there is ‘another reason’ why the mandatory cancellation decision should be revoked.
There are a number of relevant principles contained in Clause 6.3 of Direction 79 that I have considered, which provide the framework within which the task of exercising the discretion is to be approached:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled or their visa application refused.
Direction 79 sets out primary and other considerations that must be considered, where relevant, when deciding whether to revoke the mandatory cancellation of a visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not properly be viewed as “secondary”; in certain cases, other considerations may outweigh primary considerations.
Those primary considerations in Direction 79 are as follows:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
Direction 79 also sets out other considerations that must be taken into account, which include but are not limited to:
(a)strength, nature and duration of ties to Australia;
(b)international non-refoulement obligations;
(c)extent of impediments to the applicant if removed from Australia;
(d)impact on Australian business interests; and
(e)impact on victims.
ISSUES
It is agreed between the parties that as the applicant has been sentenced to a term of imprisonment for seven years and five months with a non-parole period of five years, he does not pass the character test.
Accordingly, the Tribunal must determine whether there is ‘another reason’ why the cancellation of the applicant’s visa should be revoked.
THE EVIDENCE
The applicant’s evidence
The applicant arrived in Australia in February 2008 at the age of 22 on a student visa. He originally stayed at a backpacker establishment in Kings Cross and since then has continued to reside in Sydney.
The applicant said that when he arrived in Australia, he had had no previous relationships, but that he did have some “one-night stands” before he married his wife. The applicant married his wife in June 2010 and held a temporary resident visa for two years. The applicant received a partner visa through his relationship with his now wife and was granted permanent residency in 2012.
The applicant had previously been enrolled in a number of different courses in Australia, including a diploma of management from TAFE NSW. The applicant said that he had undertaken some part time employment whilst he was studying, as he had been allowed to work up to 20 hours per week. After his first conviction, the applicant was employed in a warehouse. The applicant had also worked whilst he was on bail and said that he had stopped working to prepare for his criminal trial and to spend time with his wife. The applicant said that although his wife worked part time, he did not rely on her income.
The applicant said that he accepted the seriousness of the crimes for which he had been convicted and the impact of those crimes on the victims. He said that he was very remorseful and ashamed over what had occurred. He said that his offences occurred during a period where he had been separated from his wife due to her mental health issues and that he was using alcohol to deal with his problems. He said that at the time he had also been influenced by the discriminatory way in which mental illness was regarded in India and the lack of understanding he had around mental illness.
The applicant said that he had done everything he could whilst on bail to rebuild his relationship with his wife, to build self-awareness, to stop alcohol use and to develop a spiritual connection. The applicant said that he had also done everything he could to try and rehabilitate himself, including undertaking a sex offender program with Mr Underwood, a psychologist. The applicant saw himself as being at a low risk of reoffending.
The applicant said that he did not have any children but was anxious to have children in the future and to build a family as soon as possible, particularly because of his wife’s age.
The applicant said that his wife had regularly visited him in prison. He said that if he were released into the community in Australia, he had a number of offers of employment and support from mentors in the community, as indicated in a number of letters that he provided to the Tribunal. The applicant said that he had never relied on the welfare system in Australia and gave evidence of his work history.
The applicant had converted to Christianity whilst in prison in Australia and had a letter of support from the prison chaplain. He said he had started Bible study in 2015 and had converted to Christianity in July or August 2015. Whilst he was on bail, he had attended Hillsong Church with his wife and had been visited in prison by members of the Hillsong Church in 2015 to 2016. The applicant said that his wife was very committed to Christianity and that she received considerable support from the Hillsong Church. When questioned, the applicant said there was no correlation between the cancellation of his visa in March 2019 and his stronger commitment to the Christian faith. Rather, he said he had been doing Bible studies for some five years by that time and that he had taken the decision to change his religion only after lengthy study.
The applicant said that he feared persecution if he were to return to India and referred the Tribunal to a number of documents in relation to persecution of Christians in India. The applicant claimed that his circumstances would engage Australia’s non-refoulement obligations and said that there were Hindu extremists in India and forced conversions of Christians to Hinduism. The applicant said that there were Hindu nationalists in every state and that threats were made if such organisations became aware of Indian citizens converting to Christianity.
The applicant said that he also feared persecution in India because of certain loans taken out with the bank by his father and himself, which he said he will be pursued in relation to on return. The applicant said that some of the loans had been raised to pay for his university fees and that they were from a bank. He said that he and his father had jointly applied for the loan. He also referred to other loans which had been taken out by his father, but he said that they were in other people’s names, including those of his family.
Under cross-examination, the applicant said he had never discussed repayment of the loans with the bank directly and that his only discussions had been with his mother. The applicant said he had taken legal advice in around 2012 or 2014 in relation to the bank loans and he was told not to repay the loans because he was unlikely to return to India.
The applicant said his primary reason for wanting to remain in Australia was the welfare of his wife, who he believes would be at serious risk if he was not allowed to remain in Australia. The applicant said that his wife struggles with stress and anxiety and that she has problems managing her mental health. He said that his wife would be at a serious risk in India and would have no family support there, since his family had stopped contact with him since he had converted from Hinduism to Christianity. Under cross-examination, the applicant said that he had told his mother of his conversion about six to eight weeks ago, around the 14 or 15 October 2020, who lives with his younger brother in India.
The applicant said that his younger brother has a wife and a young child. He is 33 years old and works in a call centre. The applicant had no other brothers and sisters but did have some cousins living in Delhi and Punjab. The applicant also had a number of cousins but was not sure where they lived. He had recently spoken to one of his cousins. The applicant said that when he visited India in 2011, he had seen all his family except for one cousin.
The applicant referred to his first offence when he was working at the Christmas shop. He said he largely accepted the details of the offence as recorded by the NSW Police, namely that the victim of the offence, a Swedish national in Australia on a temporary basis, answered an advertisement for work published by the applicant on the Gumtree website. The job description involved the victim dressing in a Christmas costume and standing outside with a sign advertising the business. When the victim attended the business for an interview, she was required to try on dresses for the job. The applicant inspected the dresses as the victim tried them on and, as recorded by the NSW Police:
The POI took the VIC to the main portion of the store where she was handed dresses to try on. She was advised that she would have to wear a strapless bra. The VIC wasn't currently wearing one, so she tried on the dresses without a bra. The VIC was provided an "old bathroom" within the LOI to get changed. The VIC tried on the first outfit and showed the POI. The POI would comment on the outfit and began touching the VIC torso area with the guise that he was determining whether the dress fitted the VIC. The VIC was a little uncomfortable however didn't think too much of it. The VIC tried on another 3 outfits where the POI did the same thing. The VIC increasingly became uncomfortable. With the 4th dress the VIC tried on, the POI approached the VIC and began to pull down the top of the dress which covers her breasts, saying "this area is too loose". The VIC immediately put her hands on her chest to prevent her breasts from being exposed. The POI, with both hands pushed the VIC's breasts up, from the outside of the dress. The VIC pushed his hands away. The POI then inserted one of his hands down the front of the VIC's dress, rubbing her breasts. The VIC again pushed his hand away and ran to the bathroom.
The applicant said that he had initially entered a plea of not guilty and that he had appealed against his initial conviction, but that this conviction was confirmed by the District Court and he was placed on a good behaviour bond.
The applicant’s next offence occurred in 2014. He said that after previously moving out of his wife’s house he had moved back in with his wife in 2013 but left again towards the end of 2013. The applicant said that during this period he had started drinking a lot, as he struggled to understand his wife’s mental health issues.
The circumstances of his offending relate to two separate incidents involving two individual victims. In both cases, the applicant had made contact with the victims through a 'couch surfing' website and had offered the victims free accommodation at his home. The victims had both rejected earlier advances by the applicant, but the applicant had continued to press them to have sex with him, and he forced himself upon them.
The applicant accepted that this had occurred whilst he was on a good behaviour bond for the first offence.
The applicant said that whilst he was living away from his wife, he had a number of meetings with people whom he had connected with through the same couch surfing website, apart from the two victims. He said he had a number of consensual sexual relationships with women whom he had met on the couch surfing website. Initially he had used the website for the purposes of socialising, but later he was lonely and so he used it to look for people to “party with”. Later he became more interested in looking for sex.
The applicant said that in relation to the offences involving assault occasioning actual bodily harm and indecent assault, that he “was so heavily drunk” that he “had no recollection of that night”.
The applicant accepted that when the second victim had refused to sleep with him, he had sent her a text telling her to leave his accommodation at approximately 5:30AM. The applicant said that he thought there was mutual chemistry between himself and the second victim, and they had played pool and had a bath together on the first night.
When questioned about his plans if he were able to remain in Australia, the applicant said that he has two job offers, offers of accommodation and that he wanted to finish his parole in Sydney but eventually move to Victoria to be closer to his wife’s family. He intended to seek further mental health support and treatment for both himself and his wife.
The applicant said that he had learnt a lot about mental health and how to communicate whilst he was in prison. He said that he had supported his wife whilst he was in prison both emotionally and with budgeting and looking after her car.
The applicant said that he had been given no warnings about possible visa cancellation and he thought that permanent residency meant that he could not be removed from Australia. The applicant said that he regarded himself as Australian, although he had family in India.
Mr Richard Underwood’s evidence
Mr Richard Underwood is a psychologist who submitted a report to the Tribunal dated 24 November 2020.
Mr Underwood said that the applicant had engaged in appropriate sex offender treatment and that his engagement was exemplary. He said he could see that the applicant had done a lot of work and reflection on his mental health and on how he could best deal with and assist his wife with her own mental health issues.
Mr Underwood said that the applicant understood the harm he had done to his victims and that the applicant had written apology letters in this regard. In Mr Underwood’s view, the applicant demonstrated an understanding of the risk factors in reoffending and how to ameliorate or mitigate those risk factors.

Mr Underwood saw the applicant as being at low risk of reoffending and said that the applicant was unable to participate in relevant programs within the prison system because his risk of reoffending was seen as being low.
Mr Underwood felt that the applicant had a good relapse prevention plan, and that if this was maintained he would continue to be at a low risk of reoffending. There were a number of factors that would assist the applicant in this regard, including family and community support and an ability to plan for the future. When asked by the respondent’s representative about the applicant’s relapse plan, including that the applicant had written as part of the plan that he would not be alone with a female, Mr Underwood said that the applicant would need to be aware that he cannot afford to be accused of anything inappropriate and needed to be mindful, particularly when it was not always possible for him to control the environment.
In relation to his wife, Mr Underwood believed that the applicant regretted his behaviour and that the relationship was one of love and hope that things would be better.
In response to cross-examination, Mr Underwood said that he had not seen the sentencing remarks of Judge Huggett in the District Court and said that he had not made an assessment of the applicant using other psychological tools such as Level of Service Inventory–Revised (LSI-R).
Mr Underwood noted that he had been engaged to give skills and strategies to assist the applicant to not reoffend, rather than to make a risk assessment. He felt that the applicant was consistent in his desire to improve and that his respect for other people’s boundaries had improved.
Mr Underwood said that he saw low risk as being less than a 10 per cent risk of the applicant reoffending. He felt that the applicant had the understanding, strategies and likely the skills not to repeat the offending behaviour.
Mr Underwood said that although you cannot say “never, ever” in relation to reoffending, he did not think that the applicant would reoffend. Mr Underwood said that the applicant was continuing with his maintenance treatment and that, in his opinion, treatment mitigated the risks of reoffending, even though under the Static-99 (an actuarial instrument to predict sex offender recidivism) guidelines a person who has offended is at a higher risk of offending than someone who has never offended.
Mr Bradley Jones’s evidence
Mr Bradley Jones made two assessment reports, one for the applicant dated 1 December 2020 and one for the applicant’s wife dated 28 November 2020.
In Mr Jones’s assessment report for the applicant, he said that the applicant was at a low risk of reoffending, which he said meant the lowest possible risk category for any individual, whether that individual had been charged with a sex offence or not.
In relation to the applicant’s wife, Mr Jones said she suffers from a depressive disorder. He referred to his report where he stated that the applicant’s wife slips backwards in her treatment because of continued stress in her life. He said that she has ongoing issues with her depression, anxiety and difficulty with trying to manage life generally. In her ongoing circumstances, he said that she needed to be able to resolve her stressors to see continued benefit without slipping backward. He said that she needed support, such as from the applicant and family, to give her some protection from slipping backwards. Under cross-examination, Mr Jones said that the applicant’s wife’s mother is her “rock” and that she receives support from her mother, sister and other family members in Australia.
Mr Jones said that if the applicant were forced to leave Australia his wife’s current conditions would be adversely impacted, she would experience a sense of hopelessness and there would be an exacerbation of her conditions and a risk of suicidal thoughts and self-harm. Mr Jones referred to his report where he said that the applicant’s wife was below average in relation to cognitive functioning. He felt that any additional emotional problems would add to the possibility of suicidal thoughts and self-harm.
Mr Jones felt that the applicant’s wife would likely require further counselling to fully process all the reasons for the applicant’s offending and imprisonment.
Mr Jones was referred by the respondent to a number of documents, some of which were not before the Tribunal, but he said that his assessment of the applicant as being at low risk was based on a number of diagnostic tools, including LSI-R, Static-99 and others, and that he saw the applicant as being a low risk of reoffending. When referred to the assessment of the NSW Corrective Services, Mr Jones said that he was unable to interpret what it meant.
The applicant’s wife’s evidence
The applicant’s wife, who gave evidence before the Tribunal, said that she believed the applicant was very remorseful for his criminal behaviour. She said that when the applicant was on bail for 16 months, he had been loving and supportive to her, that he had stopped drinking and smoking and had become very spiritual. They had both started attending church together during this period of bail.
The applicant’s wife had been with the applicant throughout his legal process and she had visited him regularly in prison, together with having regular phone contact. She said that she and the applicant were “empowering and supporting each other”.
The applicant’s wife said that she suffered from depression and anxiety and that she was unable to deal with stress. She was consulting a psychologist and was also taking anti-depressants. In addition to her mental health issues, she said she had vertigo, hyperthyroidism, low immunity, back pain and only had one kidney. She took medication for vertigo and is waiting for further test results for hyperthyroidism. She has physiotherapy for her back. She had been born with only one kidney, but it was currently functioning “okay”.
The applicant’s wife said she received constant support from the applicant for her anxiety and depression and that he helps her with day-to-day tasks. She says she worked part time at a large retailer and has been there for some fifteen years and now works as a stock filler. She said that it was too stressful for her to work full-time or take on higher level duties.
The applicant’s wife described the applicant as a kind and caring person. She said that her life had been on hold whilst the applicant was incarcerated, and that life was a major struggle for her. She said that she wanted to have children with the applicant and that because of her age getting pregnant was a priority.
The applicant’s wife said that if the applicant returned to India she would go with him, but she was concerned that she may not have the same level of medical support in India, she was concerned for her safety and also being away from her mother and other family in Australia. She felt that she would be very isolated if she were to relocate to India.
If the applicant were unable to remain in Australia, the applicant’s wife said that she would be unable to cope and that she would be devastated. She hoped that the applicant would be released and that in the future they would be able to have a family, live closer to her family and buy a house together.
When questioned about her statutory declaration and letter, the applicant’s wife acknowledged that she had received some help from a lawyer with drafting the letter and the more complex terms, but she said, “everything is from me”.
In response to questioning, the applicant’s wife said that prior to his offending the applicant had been drinking a lot and arguing with her. There were major communication problems in the relationship and the applicant could not handle her depression and anxiety. She felt that he was frustrated and angry because of this.
When questioned about the duration of their relationship, the applicant’s wife said that she was living with her mother when she met the applicant online in June 2010. She came to see the applicant in Sydney and decided to move to Sydney in March 2010. She transferred her employment from Melbourne to Sydney and moved in with the applicant. This was her first relationship.
The applicant’s wife said that their relationship became very difficult after a trip to India in 2011, that her depression became worse and there was a communication breakdown. She was self-harming at this time and the applicant had encouraged her to seek mental health support.
The applicant moved out in 2012. The couple were separated at the time of the offences in 2012, but the applicant’s wife said that she had been told at the time of the incident and when charges were laid. She said that initially the applicant said that he did not commit the crime, but that before he went to jail, he said that he was sorry.
The applicant’s wife said that they moved back in together in 2013, but that the applicant moved out again towards the end of 2013. She said that whilst they were together the applicant was very depressed about his legal proceedings, drinking a lot and that she was also very depressed. She said that the stress of the trial “took a toll on our marriage”.
When the applicant moved out in November or December 2013, she said that the applicant had said he felt trapped. At that time, she said that her depression and anxiety was “through the roof”.
The applicant’s wife said that she had met the applicant a couple of times for coffee after he had moved out in 2013, and that he called her from jail after he was arrested in March 2014. She had posted bail for him as she wanted him to come home. The applicant told her that his crimes were very serious but that he was drunk at the time and could not remember what he had done. She said that she was not surprised by the applicant’s eventual guilty plea and said that the applicant was very upset that he had hurt so many people and that he was crying, very stressed and worried. The applicant’s wife said that she had anticipated the applicant going to prison and that she was not surprised by his long jail term.
The applicant’s wife said that she wanted to see the applicant home for Christmas. She believed that the applicant had overcome a great deal and was remorseful for his past actions.
The applicant’s wife’s auntie evidence
The applicant’s wife’s auntie gave evidence that the applicant was married to her niece. She was aware of the applicant’s offending and believed that the applicant was very remorseful and that he was rehabilitated. She said the applicant was “on the right track and had the right attitude”.
The applicant’s wife’s auntie said that the applicant’s wife was very shy, had no self-esteem and had been adversely impacted by the breakup of her parent’s marriage. She believed that the applicant’s support for his wife was very important and that he was “able to get through to her”. She felt that the applicant and his wife currently had a strong relationship.
The applicant’s wife’s auntie was extremely concerned as to the danger to the applicant’s wife, both in terms of her physical and mental health needs and her general welfare, if she were to go to India with the applicant. She also said that the applicant’s mother-in-law was very close to his wife and there would be an adverse impact on her if the applicant and his wife were to go to India.
The applicant’s wife’s auntie said that there would be strong family support for the applicant and his wife if he were allowed to remain in Australia.
Under cross-examination, the applicant’s wife’s auntie said that she had mostly met the applicant at family funerals, but that she had regular phone conversations with him and that she had also been kept up to date as to his circumstances by her niece. She said she had been speaking to the applicant whilst he was in prison and in immigration detention approximately once a week. She also had regular contact with the applicant’s wife.
The applicant’s wife’s auntie said in response to a question from the respondent’s representatives that the family was “terrified” that the applicant’s wife might go to India with him and the adverse impact that this would have on her.
The applicant’s friend’s evidence
The applicant’s friend sent a letter dated 5 November 2020 in support of the applicant. He said he was a friend of the applicant and that they were “brothers in Christ”.
He said that he believed that the applicant was very remorseful, had been diligent in his approach to rehabilitation and that he had done a lot of soul searching, working with psychologists and changing his lifestyle. He said that the applicant had also given up smoking and alcohol and had embraced Christianity.
The applicant’s friend thought the applicant was trying hard to save his marriage and that he had also taken ownership of his crimes and would be able to provide an example to other people.
The applicant’s friend said he lived close to the applicant’s wife and believed that they were both very committed to each other. He said that the applicant’s wife would be devastated if the applicant was not able to remain in Australia. He said that the whole community shared the struggles of the applicant’s wife and there had been times where he had been extremely worried about her welfare and had sought guidance from others within the Church. He felt that if the applicant were to be forced to leave it would be “very scary” and that the applicant’s wife would need to be put under careful watch in order to ensure her welfare.
The applicant’s friend thought the applicant would be isolated and depressed if he were to return to India and that he would be riddled with guilt in relation to the events that had forced him to be returned.
Under cross-examination, the applicant’s friend said that he understood that if the applicant was returned to India his wife would want to accompany him there, but he believed it would be extremely difficult for her if she were to attempt to do so.
The applicant’s friend was aware of the offences for which the applicant had been convicted. He had only met the applicant once in person when the applicant was in prison in October 2019 but spoke to him regularly by telephone since that time.
PRIMARY CONSIDERATIONS
Protection of the Australian community
Turning to the first of the primary considerations, namely the protection of the Australian community from criminal and other serious conduct, this consideration requires the Tribunal to look at the nature and seriousness of the applicant’s conduct to date, as well as the risk to the Australian community if he were to commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
The applicant has resided in Australia since February 2008. The applicant has committed three offences of a sexual nature against young women in vulnerable environments, and the circumstances of the applicant's conduct must be viewed particularly seriously.
On 22 May 2013, the applicant was convicted of assault with an act of indecency and received a 12-month good behaviour bond. He appealed this conviction to the NSW District Court, but the conviction was upheld. The circumstances of that case involved the applicant indecently touching a woman who had applied for a position at the Christmas shop where the applicant was working at the time. The applicant inappropriately touched the woman on a number of occasions when she was trying on her work uniform. It is relevant that the victim was an international visitor and that at the time the Police Records made reference to another incident in October 2012 involving a German National, who reported an issue to her work visa sponsor but did not make a complaint to Police.
Subsequently, on the 22 April 2016, the applicant was the further convicted in the NSW District Court of the following offences:
(a)assault occasioning actual bodily harm;
(b)indecent assault; and
(c)two counts of sexual intercourse without consent.
For these crimes, the applicant received a sentence in the District Court of eight years with a non-parole period of five years and six months. The applicant appealed this sentence to the NSW Court of Criminal Appeal, and the period of imprisonment was reduced to seven years and five months with a non-parole period of five years, which commenced on 24 July 2015 and concluded on 23 July 2020.
It is of concern that at the time he committed the offences for which he was convicted in 2016, the applicant was in breach of the good behaviour bond imposed by the Local Court.
The applicant’s later offences involved two separate incidences with two separate victims. In the first case, the applicant was convicted of assault occasioning actual bodily harm and indecent assault and the second incident involved two counts of sexual intercourse without consent. In both instances, the applicant had contacted the victims through a ‘couch surfing’ website and had offered them accommodation at his premises. Both victims were in Australia as tourists and might therefore be considered more vulnerable.
It is noteworthy that both victims had made it quite clear to the applicant that they did not want to have sex with him, but he continued to try to press them and ultimately sexually assaulted them.
In his evidence, the applicant stated that he had had consensual intercourse with a number of women whom he had contacted through the couch surfing website and that although when initially using the couch surfing application he had been looking for company, as time went by he was more looking for sexual relations. It would appear that the applicant was not happy if the women he contacted did not have sex with him, as was reflected in his text message to the second victim at 5:10AM telling her to leave his premises after she had rebuked his advances.
The nature of the applicant’s offences is reflected in the remarks of Judge Huggett. In relation to the first victim, Judge Huggett noted the following:
The offender then kissed [redacted]. She responded for a short time before stopping and telling him to go to bed. He again tried to persuade her to go with him but [redacted] told him that things between them were not going any further. The offender then said “yeah, we are just friends but I can kiss you and touch your tits if I want to”. Again [redacted] told the offender that things between them were not going anywhere and to go to bed. Eventually, the offender went into his bedroom and [redacted] fell asleep.
Sometime later, while she was asleep, [redacted] felt the offender come and lie down beside her. He put his arm over her and they both fell asleep. Not long after, [redacted] awoke to find the offender on top of her trying to kiss her. She was fully clothed, he was naked from the waist down and had a full erection. [redacted] did not respond to his kissing and was moving her head to avoid him, saying “no, please get off me”. [redacted] was, in fact, unable to get up because the offender was kneeling on her biceps as she was lying on her back and pinning her hands above her head.
The offender continued to try to kiss her while she was protesting “no, please leave me alone, I need to go home, get off me”, to which the offender was replying “shh”. At one point the offender let go of [redacted] hands and began grabbing her breasts. She struggled against him but was unable to move away because of the offender’s position on top of her pinning her down.
The offender then grabbed [redacted] hand and tried to move it towards his penis while she was saying “no, I don’t want to, please stop, please leave me alone”. Eventually, [redacted] was able to knee the offender causing him to fall back on the couch.
…
Once the offender was off her [redacted] got up, grabbed her phone and began running around the unit trying to find the door. She was disoriented and was repeatedly saying words to the effect “I need to go home, I need to get out of here, this is not okay”. She eventually found the door and commenced to open it. She got it partly open, whereupon the offender grabbed her right arm forcefully and tried to pull her back into the unit towards the couch. She managed to maintain her grip on the door saying “this is not okay, I need to go home” and begged the offender to leave her alone. She broke free of his grip and ran down the stairs, shaking and scared. She searched [redacted] address on Google and flagged down a taxi.
As a result of the offender kneeling on her biceps whilst on top of her and grabbing her right arm as she tried to leave, [redacted] suffered bruising…

In the case of the second victim, she had initially been asleep. She had awoken to the applicant making unwarranted sexual advances and asked the applicant to stop his behaviour, after which time he removed his clothing and continued to assault her. Judge Huggett stated in relation to this offence:
He recommenced licking her vagina and then inserted his finger in and out of her vagina approximately five to six times while she was saying “no, no”.
…
Around this time the offender was also kissing her stomach and breasts as she was trying to push his head away. He also tried to kiss her on the mouth, which she described as feeling as if he was smothering her. While on top of her, [redacted] could feel that the offender’s penis was erect. She continued to try to push him off her as [he] was telling her “shush”. At one point the offender slightly shifted his body weight enabling [redacted] to move from underneath him but not quite get completely free. She curled up in a ball and the offender got off her. She put her clothes back on and went to the bathroom and showered where she scrubbed herself.
Although Judge Huggett did not accept that the applicant’s behaviour was entirely predatory, she made the following remarks in relation to his behaviour:
… the offender had an initial belief in relation to both [redacted] and [redacted] that each might have been sexually interested in him. However, he was disavowed of that in very clear terms by each complainant when each resisted his advances. There can be no doubt that by the time of the [redacted] offences the offender was on notice, albeit in a context in which he was unaware of exactly what he had done to [redacted] because of his alcohol intake, but on notice that he had tried to take advantage of her and had “scared her shitless”.
Nevertheless he determined to meet up with another female traveller, drink with her (although to a lesser extent) and force himself upon her when she had told him no. It is in this way that the offender’s behaviour can be described as determined and deliberate and to a limited extent predatory, particularly as regards [redacted].
The length of the sentences imposed reflect the seriousness of the applicant’s crimes. All of the applicant’s crimes, but particularly those for which he was convicted in 2016, must be regarded as extremely serious, involving acts of violence and sexual assault against women who were clearly in a vulnerable position. In both incidences in 2016, the women had made it quite clear that they did not want to have sex with the applicant and had asked him to stop. He ignored their pleas and at least in the case of the second victim sought to take advantage of her whilst she was asleep.
In her sentencing remarks, Judge Huggett said:
In relation to Count 2 and taking into account the plea of guilty and the manner indicated, I indicate a sentence of eight months imprisonment. In relation to Count 3 and taking into account the plea of guilty and the manner previously indicated, I indicate a sentence of 20 months imprisonment. In relation to Count 5 and taking into account the plea of guilty and the manner previously indicated and the matter on the Form 1, I indicate a sentence of imprisonment of six years and six months with a non-parole period of four years and six months imprisonment. In relation to Count 6 and taking into account the plea of guilty and the manner previously indicated, I indicate a sentence of imprisonment of six years and six months with a non-parole period of four years and six months imprisonment.
The applicant appealed to the Court of Criminal Appeal, which increased the indicative sentence on Count two to eleven months imprisonment and decreased the sentences for Counts three, five and six respectively to one year ten months, five years six months and five years eight months, rendering an aggregate sentence of seven years and four months with a non-parole period of five years. The Court of Criminal Appeal noted concerns as to the way Judge Huggett had dealt with the matter but said that it did not diminish the nature and seriousness of the offences for which the applicant was convicted, as reflected in the sentence imposed.
The applicant accepts that his crimes are very serious and have had very serious and continuing consequences for his victims.
Having regard to Direction 79, the nature and seriousness of the offences that the applicant committed against young woman, the fact that the applicant was on a good behaviour bond and that he had been arrested after having committed the assault on the first victim, together with the length of the sentence imposed, mean that the applicant’s offending must be regarded as extremely serious.
Risk of reoffending
In assessing whether the risk to the Australian community is unacceptable, Direction 79 requires the Tribunal to have regard to the nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct and the likelihood of the person engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the person reoffending. I note that Direction 79 states that the Australian community has a lower tolerance for risk of future harm as the potential for future harm increases.
At the hearing the applicant said that he had accepted full responsibility for his crimes and that he was ashamed of his behaviour. He said that the crimes for which he was convicted in 2016 had occurred whilst he was under the influence of alcohol, separated from his wife and in a state of some emotional distress. The applicant referred to his wife’s mental health issues and the effect these issues had on him prior to his decision to move out of their home. I accept the applicant’s remorse is genuine and that his offending behaviour may have resulted, at least in part, from alcohol consumption.
The applicant stated that he has “quit drinking alcohol” and “detoxified from alcohol” for five years and now has a positive lifestyle. However, it is also worth noting that abstinence is yet to be tested in circumstances where the applicant is not being held in custody nor under supervision.
The Tribunal also heard evidence from Mr Underwood that he thought the applicant’s risk of reoffending was low, although he agreed that low did not mean there was no chance of ever reoffending.
Mr Jones also gave evidence in relation to the mental health of the applicant and his wife. In the case of the applicant, Mr Jones said “based on the comprehensive assessment, it is my opinion that [the applicant] presents a low risk of engaging in sexual violent behaviour.” Again, it was agreed that a low risk of reoffending did not mean there would be no risk. Mr Jones, for instance, noted that if the applicant were to be released into Australian society he may wish to obtain further treatment, including continued relationship counselling and supportive counselling to assist in adjusting to his return to society and supporting stable emotional functioning and securing stable employment.
Although there was some dispute about the classification of the NSW Department of Corrective Services as to the applicant’s risk of reoffending, I accept that that classification was low/moderate. Furthermore, I accept that in determining the sentence to be imposed, both Judge Huggett and the Court of Criminal Appeal relied on an assessment that the applicant was at a low risk of reoffending.
I also accept the applicant’s evidence as to his exemplary conduct in jail, his conversion to Christianity and the fact that he now has a much deeper understanding in relation to his wife’s mental health issues and to his own behaviour, offending conduct and psychological issues. The applicant said he has completed 'Positive Lifestyle' and 'Seasons for Growth' programs whilst he was incarcerated, which he believes have taught him techniques to deal with loneliness, self-esteem, grief, depression, loss, anger, stress management and anxiety. While imprisoned, he also maintained employment, such as working in textiles and in the laundry.
I accept the evidence that the applicant has the strong support of his wife and from the Christian community for which he is now a member, which should also contribute to his being at a low risk of reoffending. I also accept the evidence of the applicant’s wife’s auntie in relation to ongoing family support with accommodation, emotional support and assistance if he were released.
Despite the applicant being, in my opinion, at low risk of reoffending, his crimes were of a very serious nature and any future offending would have very serious consequences for the community. I have taken into account the nature and seriousness of the applicant’s offending, the cumulative nature of this offending and that Direction 79 notes that the Australian community has a lower tolerance for risk of future harm as the potential for future harm increases, together with the applicant’s low risk of offending, and I give this primary consideration substantial weight against revocation of the delegate’s decision.
Best interests of minor child in Australia
The applicant has no minor children in Australia and has not identified any other minor children that would be impacted by the decision. Both the applicant and his wife gave evidence of their desire to have children in the future, but as decided by the Full Court of the Federal Court in Kalm v Administrative Appeals Tribunal [2013] FCA 890, this is not relevant to this consideration of the best interests of minor children in Australia.
Expectations of the Australian community
In FYBR v Minister for Home Affairs [2019] FCAFC 185 the Full Federal Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are those set out in the Direction at paragraph 11.3 of Direction 65, which is analogous to Direction 79.
The applicant has been convicted of multiple sexual offences and has failed to abide by Australian law, even whilst on a good behaviour bond. Having regard to the provisions of Direction 79 and the applicant’s sexual offences against women, the Australian community would expect that the applicant is not given the privilege of holding an Australian visa. Furthermore, the offences were committed against travellers who were visitors to Australia and in vulnerable positions. It is also of note that the applicant came to Australia at the age of 22 and has been imprisoned for a significant part of the 12 years that he has lived in Australia.
Given the nature and seriousness of the applicant’s cumulative offences, I give substantial weight to this consideration which weighs in favour of non-revocation of the delegate’s decision.
OTHER CONSIDERATIONS
Strength, nature, and duration of the applicant’s ties to Australia
The applicant has lived in Australia from 2008 since he was 22 years old. Prior to coming Australia, the applicant lived in India with his family. He attended school in India and came to Australia on a student visa.
I accept the evidence of the applicant that he completed a number of courses in Australia and that he worked during his time in Australia, either part time whilst he was a student or full-time.
There was no evidence that the applicant had developed any particularly strong social or work networks prior to his going to prison and no evidence of any particular contribution he had made to the Australian community. His strong church connections and stronger ties with his wife’s family developed after he was in prison.
The applicant does, however, have a wife in Australia whom he married in 2010 and also has currently developed ties with members of her family, more particularly in recent times. I accept the evidence of the applicant’s wife’s auntie that the family is willing and able to provide strong support to the applicant and his wife if he were to remain in Australia, including accommodation. I also accept that support would not be available if the applicant were to return to India and more particularly would not be available to his wife if she were to return with him to that country.
The applicant and his wife both gave evidence that they met in January 2010 through the internet and were married in June 2010. When they met, the applicant’s wife was living with her mother in Melbourne but moved to Sydney in March 2010 to be with the applicant. She moved in with the applicant at this stage and I accept her evidence that they were initially very happy together and wanted to embark on a new life as a couple and the applicant’s wife was able to transfer her employment from Melbourne to Sydney. The applicant moved out of the matrimonial home in 2012 after he was granted permanent residency in Australia. The evidence of both the applicant and his wife was that the applicant’s wife was suffering from significant mental health issues at that time, primarily depression and anxiety, and communication between the couple became very difficult. The applicant’s first offence occurred whilst the couple were separated in late 2012. The applicant’s wife gave evidence that he had initially denied that he committed the offences but later came to accept the impact of his crimes.
The couple moved back in together in early 2013 and the applicant moved out again at the end of 2013. The wife gave evidence that during this period together the applicant was stressed about his criminal law proceedings and drank regularly. The applicant’s wife said she was very depressed at the time and that the stress of the legal proceedings “took a toll on [their] marriage”.
After the applicant was arrested for the offences in 2014, the applicant’s wife posted bail for him after he had called her from jail. She said she “wanted him home” and the applicant at this time had told his wife that his crimes were very serious, but he did not remember because he was drunk when they occurred. The applicant’s wife gave evidence that despite initially pleading not guilty, the applicant ultimately accepted responsibility and she said that he was very stressed and worried about what he had done and the impact of his conduct on his victims. She had anticipated the applicant going to prison and was not surprised by his sentence.
Whilst the applicant was on bail, he and his wife had started to attend church together and had become part of the local church community. The applicant’s friend through church confirmed the applicant and his wife’s engagement in a mutual church group and said that he was a friend of both parties although he had not spent a lot of time with the applicant in person
During his evidence, the applicant emphasised that one of the primary reasons he wanted to remain in Australia was to care for his wife. I accept the evidence from the applicant, the applicant’s wife’s auntie, Mr Britton and Mr Jones that the applicant’s wife has a serious depressive disorder, anxiety and that she cannot cope with stress. I also accept the evidence of Mr Jones that the applicant’s wife needs a great deal of support to protect her against the effects of her mental illness. I also accept Mr Jones’s evidence as to the need for the applicant’s wife to resolve issues that are causing her stress so that she can move forward with her treatment. I accept the evidence that currently the applicant and his wife have a strong relationship.
The applicant’s wife said that she would try to go to India if the applicant were to return to that country. However, she acknowledged that it would be very difficult for her to do so given her health status and complete lack of support, other than the applicant and perhaps his family in India. She also expressed concern about safety for Christians in India.
I accept the evidence of Mr Jones, Mr Britton, the applicant’s wife’s auntie, the applicant and his wife as to the problems she may face living in India. In light of the evidence, I consider it most unlikely indeed that the applicant’s wife would be able to return to India with him.
I also accept that the support of the applicant is very important to his wife’s well-being and that she will be significantly impacted in an adverse way if he is not able to remain in Australia. I note that for much of their time in a relationship, the applicant has been in jail and immigration detention and the applicant has not lived with his wife since being detained in July 2015. However, they clearly had a period together whilst he was on bail and I accept the evidence of daily contact between them, by telephone and the wife’s personal visits whilst the applicant has been in detention.
Given the strong evidence as to the impact upon the applicant’s wife if the applicant were unable to remain in Australia alongside the ties the applicant has formed, I give this consideration substantial weight in favour of revocation of the delegate’s decision.
Extent of impediments if removed
The applicant has spent some 12 years in Australia. Approximately half of that time has been spent either in prison or in immigration detention.
Until the age of 22, the applicant lived in India with his family and received most of his education in India and would therefore be unlikely to face any significant language or cultural barriers.
The applicant completed a number of courses in Australia, including catering, and those skills would likely be readily transferral in gaining employment if the applicant was living in India.
I accept the applicant’s evidence that he considers himself to be Australian and that it would be a difficult adjustment for him to return to India.
The applicant gave evidence that his mother, brother, uncles and cousins all live in India. In evidence, the applicant said that he did not have a lot of contact with most of his relatives, but he did have regular contact with some of them. He had last had physical contact with his relatives when he visited India in 2011. The applicant’s evidence was that his mother lived with his younger brother in a two-bedroom apartment in Delhi and his father was deceased.
There would appear to be no language difficulties in the applicant returning to India and as an Indian citizen he would have access to the health care system in that country to the standard of other citizens in India. I note, however, that the applicant raised concerns about the way in which mental health issues were dealt with in India and I accept that he might feel more comfortable engaging in mental health care services in Australia.
The applicant claimed that his criminal convictions would mean he would be judged negatively on return to India. However, I note in this regard that there is no reason why such convictions would need to be publicly disclosed, although there may be areas such as employment where, as in Australia, disclosure would be necessary.
The applicant also claimed that he would have difficulty returning to India because of debts incurred by his father, some of which relate to the costs of him coming to Australia and in enrolling in an educational institution. Furthermore, the applicant also claims that his conversion to Christianity makes him more vulnerable to attacks and/or forced conversion to Hinduism.
I have dealt with both of the issues of religion and debt in more detail when considering the issue of Australia’s non-refoulement obligations. For the purposes of this consideration, however, I accept that there may be some difficulties for the applicant in relation to the issues he has raised, which may impact his ability to integrate readily into the Indian community. In particular, the applicant’s conversion to Christianity may make it more difficult for him to live in some states in India where Hindu nationalism and religious zealot threat is more prevalent. However, he is unlikely to face serious difficulty if he were to relocate in a more international city such as Delhi, where he has family, or Mumbai. It is also likely that if he were to live in an area where there is a significant Christian community, this would form a support network for him and make his integration in India easier.

In relation to the issue of debt, the applicant is likely to have at least considered making appropriate arrangements with the bank that has lent the money to him and his father. It is not unreasonable that the bank would expect to be paid and the applicant and his father must have known that in taking out the loan the bank would expect to be re-paid. Any other loans appear to have been the responsibility of the applicant’s father. There was no clear evidence before the Tribunal of any current threat to the applicant as a result of debt obligations.
In weighing up all of the applicant’s circumstances relevant to this consideration, I find that there are some impediments to the applicant returning to India and I give this consideration minimal to moderate weight in favour of revocation.
International non-refoulement obligations
The applicant has raised a number of matters which should properly be considered as to whether Australia owes non-refoulement obligations under international law in relation him.
The first issue the applicant has raised is his conversion to Christianity. In his evidence, the applicant said that having been raised in the Hindu religion he would face persecution, possible violence and the possibility of forced conversion to Hinduism if he were returned to India on the basis of his conversion to Christianity. The applicant claimed that the Indian government was controlled by a Hindu nationalist group and that there were provincial governments which were also strongly opposed to non-Hindus or Hindus who had converted to Christianity.
The applicant produced a number of newspaper articles which indicated specific attacks on Christians in particular locations in India to support his claims along with a document prepared by World Watch List, which detailed from their research the way in which Christians were being treated in various countries and identified India as a country where Christians face persecution.
The Tribunal has also had the benefit of the information prepared by the Department of Foreign Affairs and Trade (DFAT). The DFAT information is very material in relation to the applicant’s non-refoulement claims. In its assessment, DFAT notes recent changes to the treatment of Christians in India, but states at paragraph 3.15 of the report that “DFAT assesses that most Christians live day-to-day without societal discrimination or violence.” I place significant weight on the DFAT assessment, which is entirely independent.
The applicant says that he has been rejected by his family in India since converting to Christianity but there was no objective evidence to support this claim. Further, even if his family did reject him because of his conversion, there is no evidence that this would place him at risk of significant harm so as to engage Australia’s international non-refoulement obligations.
The applicant also raised concerns about his safety on the basis of the bank loans which he said had been taken out by his father and in relation to at least one bank loan taken out for the purposes of funding his education in Australia. The loan documentation had also been signed by the applicant and he said that his mother had to move to a different state because of the harassment she had been subject to in pursuing the repayment of loans. There was no objective evidence before the Tribunal that she was facing any current pressure to repay loans or that members of her family may be impacted.
In evidence, the applicant stated that he had been told not to worry about repaying the bank loan as he was living in Australia and unlikely to return to India. There was no evidence of any demands for repayment of loans from any other source.
In the absence of evidence to the contrary, it is hard to see how a properly regulated bank seeking lawful repayment of a loan legitimately incurred and which no doubt all parties expected to be repaid would engage Australia’s non-refoulement obligations. There was no real evidence as to any other debts incurred by the applicant’s father and with third parties, which he said he may be expected to repay.
I note further that it is possible for the applicant to apply for a protection visa, as sections 48A and 501E of the Act do not prevent the applicant from lodging an application for a protection visa. Given that it remains open for the applicant to apply for a protection visa, the immediate legal and factual consequences of non-revocation do not necessarily include removal from Australia or indefinite detention.
Accordingly, on the evidence provided, I am not satisified that the circumstances are likely to engage Australia’s non-refoulement obligations for the reasons of the applicant’s Christian religion or debt pursual. Accordingly, there is insufficient evidence to be satisified that non-refoulement obligations are engaged in this case and I place limited or neutral weight on this consideration in favour of revocation of the delegate’s decision.
CONCLUSION
It is impossible to not feel considerable sympathy for the applicant’s wife if the applicant is returned to India.
However, in weighing all of the evidence, those considerations which favour revocation of the delegate’s decision are not sufficient, in my opinion, to outweigh the two primary considerations which weigh heavily in favour of non-revocation, namely the protection of the Australian community and the expectations of the Australian community.
DECISION
Accordingly, taken in its entirety, the evidence weighs in favour of non-revocation of the delegate’s decision. I am therefore satisified that the correct and preferable decision is to affirm the reviewable decision of the delegate.

I certify that the preceding 152 (one hundred and fifty-two) paragraphs are a true copy of the reasons for the decision herein of the Hon. John Pascoe AC CVO, Deputy President.

.............................[SGD]...........................................
Associate
Dated: 23 December 2020

Date of hearing: 7 and 8 December 2020

Applicant: In person (by video conference)

Solicitors for the Respondent: Mr W. Sharpe, HWL Ebsworth Lawyers

[2020] AATA 5186

23 December 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Appeal

Jurisdiction

Date of hearing:	7 and 8 December 2020
Applicant:	In person (by video conference)
Solicitors for the Respondent:	Mr W. Sharpe, HWL Ebsworth Lawyers